Excerpt:.....of the petitioner is further that the labour that was employed by the petitioner after he got the mining lease is not the same which was employed by the previous lessee. the aforesaid matters ought to have been considered by the commissioner before recording a finding that the establishment of the petitioner is a continuation of the establishment of the previous lessee m/s ballabh ram. the matter is remanded to the commissioner for reconsideration of the question as to whether the present mine is a new establishment or is the continuation of the establishment of the previous lessee m/s ballabh ram.;case remanded - - 1) dated 14th september, 1981 the commissioner required the petitioner to submit monthly returns for the period from december, 1974 to july, 1981 in accordance with the..........commissioner, jaipur (here in after referred to as 'the commissioner)'.2. the petitioner holds a mining lease for sandstone in village binega, tehsil karauli. the said mining lease was granted to the petitioner on 16th december, 1974. by notice (ex. 1) dated 14th september, 1981 the commissioner required the petitioner to submit monthly returns for the period from december, 1974 to july, 1981 in accordance with the provisions of para 38(2) of the employees provident funds scheme, 1952 and para 10(1) of the employees' deposit linked insurance scheme, 1976 and also to deposit the employer's share as well as employee's share of the contributions under the aforesaid schemes. by another notice (ex.2) dated 11th september, 1981 the petitioner was required to appear before the commissioner,.....

Judgment:

Suresh Chandra Agrawal, J.

1. In this writ petition, the petitioner is challenging the validity of the order (Ex. 5) dated 29th December, 1981 and the order (Ex. 7) dated 19th February, 1982 passed by the Regional Provident Fund Commissioner, Jaipur (here in after referred to as 'the Commissioner)'.

2. The petitioner holds a mining lease for sandstone in village Binega, Tehsil Karauli. The said mining lease was granted to the petitioner on 16th December, 1974. By notice (Ex. 1) dated 14th September, 1981 the Commissioner required the petitioner to submit monthly returns for the period from December, 1974 to July, 1981 in accordance with the provisions of para 38(2) of the Employees Provident Funds Scheme, 1952 and para 10(1) of the Employees' Deposit Linked Insurance Scheme, 1976 and also to deposit the Employer's share as well as Employee's share of the contributions under the aforesaid schemes. By another notice (Ex.2) dated 11th September, 1981 the petitioner was required to appear before the Commissioner, in person or through an authorised representative, on 19th October, 1981 to give evidence and produce all the relevant records including the records mentioned in the said notice for conducting an enquiry and determining the amount due from him. The petitioner submitted a reply (Ex 3) dated 19th October, 1981 to the letter dated 11th September, 1981 wherein he raised the objections that his establishment was not covered by the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (here in after referred to as 'the Act') and that it is a newly set up establishment. The petitioner submitted another letter (Ex.4) dated 19th October, 1981 in reply to the notice dated 11th September, 1981 wherein he requested that copies of the information, inspection report or any other material which was on record and was relied upon for issuing the summons, may be supplied to him before proceeding further in the matter. In the said letter the petitioner also stated that he was not employing 20 or more persons in his establishment which is a newly set up establishment. The Commissioner by his letter (Ex.5) December, 1981 informed the petitioner that his contention that his establishment is a new establishment and is, therefore, not covered by the Act, was not correct and that he had taken the mine which was already covered under the Act and that it was obligatory for him to comply with the statutory provisions with effect from 16th December, 1974. By the said letter, the Commissioner informed the petitioner that since the petitioner was neither depositing the dues nor was he producing the record, there was no alternative left for him but to determine the amount due from the petitioner under Section 7A of the Act on the basis of the material avilable with Commissioner. The petitioner submitted a reply (Ex. 6) 6th January, 1982 wherein he reiterated the objections that his establishment is a newly set up establishment and is not covered by the provisions of the Act. In the said letter the petitioner also requested that the matter may be referred to the Central Government under Section 19A of the Act. Thereafter the Commissioner passed the order (Ex. 7) dated 19th February, 1982 whereby he made the determination of Provident Fund dues under Section 7A of the Act. In the said order the Commissioner has stated that M/s Ballabh Ram Thekedar, Hindon was covered under the Act with effect from 31st December, 1965 and the said employer paid Provident Fund dues and that it came to notice that the mine at Binega (Karauli) which was run by M/s Ballabh Ram had been taken over by the petitioner and accordingly he was advised by letter dated 13th March, 1977 to comply with the provisions of the Act with effect from 16th December, 1974. In the said order it is also stated that since the petitioner had failed to pay Provident Fund and Insurance Fund dues for the period from December, 1974 to July, 1981, it was decided to determine the said dues under Section 7A of the Act and a notice was issued to the petitioner asking him to produce the relevant records and since the said records were not produced, determination had been made on the basis of the record available in the office of the Commissioner. By the aforesaid order the Commissioner has determined that a sum of Rs. 27,706.00 was payable by the petitioner in respect of the period from December, 1974 to July, 1981. Feeling aggrieved by the aforesaid orders dated 29th December, 1981 and 19th February, 1981 the petitioner has filed this writ petition.

3. Shri Keshote, the learned counsel for the petitioner has submitted that the establishment of the petitioner is a new establishment which started operation after the mining lease was granted in favour of the petitioner on 16th December, 1974 and since total number of employees working in the said establishment was less than 20, it was not covered by the provisions of the Act. Shri Keshotehas submitted that the establishment of M/s Ballabh Ram who held the mining lease in respect of the said mine, was closed when his mining lease was cancelled, and that thereafter, no mining operations were conducted on the said mine and that the mining operations in the said mine were granted afresh by the petitioner after the mining lease was granted in his favour with effect from 16th December, 1974. Shri Keshote has also submitted that the staff that was employed by the petitioner is different from that employed by M/s Ballabh Ram. In this connection Shri Keshote has invited my attention to the certificate (Ex. 9) issued by the Assist in Mining Engineer, Karauii wherein it is stated that mining lease for sandstone near village Binega, Tehsil Karauil has been granted in favour of the petitioner, for the period 16th December, 1974 to 15th December, 1979 and that the said mining lease has been renewed from 16th December, 1979 to 16th December, 1989. In the said certificate the Assistant Engineer has also stated that before the grant of the mining lease in favour of the petitioner, there was a mining lease in favour of M/s Ballabh Ram resident of Hindaun and that the said mining lease was operative from 8th February, 1963 to 24th November, 1971 and that it was cancelled on 25th November, 1971 and that the Department took possession of the mine and thereafter the mining lease was granted in favour of the petitioner on 16th December, 1974. Shri Keshote has also placed reliance on the decision of the Supreme Court in the Provident Fund Inspector, Irivendrum v. The Secretary N.S.S. Co-operative Society, Changannachery : (1969)IILLJ693SC .

4. The question which arises for consideration is as to whether the mine which is being run by the petitioner on the basis of the mining lease granted in his favour of 16th December, 1974 is new establishment for the purpose of the Act or it is an old establishment. The case of the petitioner is that the mine which is being run by the petitioner is a new establishment which was started by him after the grant of the mining lease in his favour on 16th December, 1974. The Commissioner has however, held that the said establishment is an old establishment which was being run by the earlier lessee M/s Ballabh Ram and since the said establishment was covered by the Act the petitioner is bound to comply with the provisions of the Act. 1, however, find that the Commissioner has not made a determination of the necessary facts on the basis of which a finding could be recorded that the establishment of the petitioner is a continuation of the establishment of M/s Ballabh Ram and not a new establishment. From the certificate which has been issued by the Asst. Mining Engineer, it appears that the mining lease of M/s Ballabh Ram was cancelled on 25th November, 1971 and thereafter the Department took possession of the mine and the mining operations in the mine were restarted only when the mining lease for it was granted in favour of the petitioner on 16th Dec, 1974. This shows that there were no mining operations in this mine from 25th November, 1971 till 16th December, 1974. The case of the petitioner is further that the labour that was employed by the petitioner after he got the mining lease is not the same which was employed by the previous lessee. The aforesaid matters ought to have been considered by the Commissioner before recording a finding that the establishment of the petitioner is a continuation of the establishment of the previous lessee M/s Ballabh Ram. In the facts and circumstances of the case, I consider it fit and proper that the orders dated 29th December, 1981 and 19th February, 1982 are set aside and the matter is remanded to the Commissioner for reconsideration of the quetion as to whether the present mine is a new establishment or is the continuation of the establishment of the previous lessee M/s Ballabh Ram.

5. In the result the order (Ex. 5) dated 21st December, 1981 and the order (Ex. 7) dated 19th February, 1982 are set aside and the matter is remanded to the Commissioner for reconsideration of the question as to whether the establishment of the petioner is a new establishment started with effect from 16th December, 1974 or Is continuation of the establishment of M/s Ballabh Ram. The Commissioner shall decide this question after affording to the petitioner an opportunity to produce the necessary material in support of his case. In the facts and circumstances of the case, the parties are left to bear their own costs. The petitioner is directed to appear before the Commissioner on 10th June. 1985.